The ‘opt out’ provision in Unclos

A retired Philippine ambassador, Rosario G. Manalo, asserted in the July 12, 2019 live broadcast of the Tapatan sa Aristocrat that the compulsory arbitration case the Philippines filed against China in 2013 was in violation of the UN Convention on the Law of the Sea (Unclos). That broadcast is still being shown in YouTube with the title “Did Aquino, Del Rosario, Carpio LIE to the Filipinos?” I have responded to friends who asked me about Ambassador Manalo’s assertion, but I have not written publicly about it. I have now decided to make my response public because I still get queries from interested parties after they see in YouTube Ambassador Manalo assail as illegal the landmark Arbitral Award in favor of the Philippines.

My response covers two points. First, Ambassador Manalo claims that the “Philippines, when we ratified and approved the Unclos, we opted out of the provisions which means hindi natin gagamitin ’yung compulsory arbitration.” In short, Ambassador Manalo categorically claims that the Philippines opted out of compulsory arbitration when it ratified Unclos. This claim of Ambassador Manalo is patently false.

The Philippines made the following “Declaration” when it ratified Unclos on May 8, 1984: “The agreement of the Republic of the Philippines to the submission for peaceful resolution, under any of the procedures provided in the Convention, of disputes under Article 298 shall not be considered as a derogation of Philippine sovereignty.” One of the “procedures provided in the Convention” is compulsory arbitration. Thus, the Philippines categorically expressed its “agreement xxx to the submission” of the “disputes under Article 298” to compulsory arbitration. The Declaration is clear that the Philippines did not opt out of, but accepted, compulsory arbitration, which “shall not be considered as a derogation of Philippine sovereignty.” There will be no derogation because Unclos regulates only sovereign rights, not sovereignty, as repeatedly reiterated in the Arbitral Awards of Oct. 29, 2015 and July 12, 2016.

Second, Ambassador Manalo claims: “Equally the same, the Chinese opted out of that provision. So both the Philippines and China cannot invoke compulsory arbitration under the Unclos because we both opted out.” China did opt out of compulsory arbitration on Aug. 25, 2006, when it sensed that one or more Asean coastal states might bring China to compulsory arbitration on the South China Sea dispute. However, the opt out provision under Article 298 is limited to the disputes specified in Article 298. Outside of these well-defined disputes, a state cannot opt out of compulsory arbitration.

The disputes specified in Article 298 are: (1) “disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles”; (2) “disputes concerning military activities”; and (3) “disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations.”

In the arbitration case, the Philippines did not ask the arbitral tribunal for any “sea boundary delimitation,” which applies only if there are overlapping maritime zones, like overlapping exclusive economic zones, between the Philippines and China. The Philippine position was that there are no overlapping exclusive economic zones between the Philippines and China that would allow China to opt out of compulsory arbitration. First, China’s coastline is more than 800 nautical miles from the coastline of the Philippines, making it physically impossible for any overlap between their respective 200-nautical mile exclusive economic zones. Second, none of the geologic features in the Spratlys, whether occupied by China or not, is habitable so as to generate an exclusive economic zone. Thus, there are no overlapping exclusive economic zones between the Spratlys and Palawan. The arbitral tribunal upheld the Philippine position on all these issues.

Disputes relating to “historic bays or titles” are disputes involving the transformation of maritime areas, close to the coastline, into territorial seas by usage or custom over the course of time. Like the other disputes specified in Article 298, these are not the disputes between the Philippines and China. Thus, the arbitral tribunal ruled that China could not invoke the opt out provision since the disputes between the Philippines and China do not fall under any of the disputes specified in Article 298 of Unclos.

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